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Friday, March 8, 2013

Divorce: If a Decree Misclassifies a Payment, the Effective Date of the Reclassification is the Date of the Petition to Modify.

Cox v. Cox, 2012 UT
App. 225, Utah Court of Appeals, August 16, 2012

In Husband and Wife’s stipulated divorce decree, husband was
ordered to pay $3000 per month as a property settlement and child support. Wife remarried. Husband did not learn of the remarriage for
two years, upon learning of the remarriage he petitioned the court to modify
his decree and to properly classify the monthly payments as child support and alimony.

Because there was no consideration for the property payments, the
trial court classified payments as alimony.
However, the Court terminated alimony on the day of the trial and not the
date of remarriage. Husband appealed.

The Court of Appeals affirmed
the trial court’s denial of retroactively modifying the alimony award to
the date of remarriage. The Court found it was Husband’s burden to have the payments
classification corrected. The court analogized
this re-classification procedure with having to establish cohabitation in order
to end alimony. The misclassification in
the decree is effective until a party asks to correct it. The Court of Appeals did modify the award
retroactively to the date the Petition to Modify was filed.

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